Wednesday, June 9, 2010

Sidewalk Leafletting

According to this report, a federal court has ruled that a Dearborn group has no First Amendment right to roam about the sidewalks near an Arab-American festival to distribute literature about Christianity. Instead, the court held that would-be pamphleteer could be confined to a booth space within the festival grounds. The plaintiff sued, in part, because he claimed that festival-goers would not be likely to stop at the assigned booth. I gave a radio interview some time ago regarding this case. Along with a few other law professors, I also expressed some early thoughts on the case in this FOXNews.com report.

Bans on leafetting in traditional public forums (indeed in any type of forum) are generally deemed unconstitutional. The fact that such a ban will help maintain public order, as the Dearborn authorities appear to allege, does not suffice to make what is essentially a medium ban constitutional. While it is true that the First Amendment does not guarantee the speaker the best location or means of expression, it is also the case that a speaker cannot be denied a right to speak in a traditional public forum on the ground that he may speak in some other place -- in this case from inside a booth. Like other "free speech zones," the booth appears to preserve the speaker's right to communicate in public. But the speaker's audience in this case is not going to be a willing one; hence the need to use the public sidewalks for what will likely be unwanted and in some cases perhaps unpleasant encounters. (I am assuming, of course, that the sidewalks remained "public" in this case -- i.e., that they were not part of any private permitted event.)